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2006 DIGILAW 156 (JK)

Mohd. Ashraf Gojri v. State Of J. &K.

2006-06-06

MANSOOR AHMAD MIR

body2006
1. By this judgement, I propose to dispose of all the three writ petition tilled above as common questions of fact and law arc involved in these petitioners. 2. In SWP No. 535/2000, petitioner seeks appointment on compassionate grounds on the count that his father namely Ghulam Hassan Gujri, who was working as Cleaner in the Mechanical and Stores Division, USIIP-11 Kangan died in harness on 24-10-1985 leaving behind four minors and widow. The petitioner at the time of death of the deceased was minor. As per averments made in the petition, he attained majority in the year 1995, also simultaneously passed 10+2 examination. It is also submitted that though the case of the petitioner was processed, but respondents failed to appointment him on compassionate grounds in term of SRO 43 of 1994, hence this petition. 3. In SWP No. 554/2000, it is submitted that the petitioners father Late Ali Mohammad Dar, who was working as teacher in the Education Department on substantive post, died in harness on 25-4-1990 leaving behind the widow and four minor kids, petitioner was 13 years of age and undergoing education. He applied for appointment on compassionate grounds in the year 1994 which was rejected on 26-8-1995. He has accordingly prayed that the communication dated 26-8-1995 be quashed and the respondents be commanded to appoint him on compassionate grounds in terms of SRO 43 of 1994. 4. In SWP No. 1068/2000, petitioner claims appointment on compassionate grounds on the count that his father was working as Fitter in PHE Division, Anantnag who died in harness on 29-7-1990 and he applied for appointment on compassionate grounds in the year 1995. His case was processed but he was not appointed which constrained him to file the writ petition at hand for seeking writ of "mandamus commanding the respondents to appoint him on compassionate grounds. 5. Respondents have not chosen lo file reply in the petition. Heard learned counsel for the parties and perused the files. 6. It is well established proposition of law that compassionate appointment is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Its basic intention is to see that on the death of the employee concerned, his family is not deprived of the means of livelihood and to enable the family to get over sudden financial crisis. Its basic intention is to see that on the death of the employee concerned, his family is not deprived of the means of livelihood and to enable the family to get over sudden financial crisis. In order to seek appointment on compassionate grounds, the person concerned must be eligible at the time of death of the deceased or at the most he must attain eligibility within six months from the date of death of the deceased as is envisaged by SRO 43 of 1994 for facility of reference, rules 2 3(1) of SRO 43 is reproduced hereunder: "2. Application of Rules:- These rules shall apply to the compassionate appointment of a person who is a family member of :- (i) a Government employee who dies in harness other than due to militancy related action;, (ii) a Government employee who dies as a result of militancy related action and is not involved in a militancy related activities. 3. Appointment under these rules: -- (I) Not withstanding anything contained in any rule or order for the time being in force regulating the procedure for recruitment in any service or posts under the Government an eligible family member of a person specified in rule 2 may be appointed against a vacancy in the lowest rank of a non- gazetted service having qualification above Matriculation or to a class IV post, if the candidate has read upto Matric: Provided that the applicant is eligible and qualified or acquires eligibility and qualification within a period of six months from the death of the deceased person specified in rule 2." 7. These rules are un-ambiguous and crystal clear. A person who seeks compassionate appointment must be eligible at the time of death of deceased or at best must obtain eligibility within six months from the death of the deceased and if a person is not eligible at the time of death of the deceased or does not become eligible within six months from the date of death of deceased, can not claim appointment on compassionate grounds and he has no right to be appointed. 8. 8. Rule 3 also provides that a dependent of a family member of the deceased can apply for appointment in the lowest rank of non-gazetted service having qualification above Matriculation or to a class IV post if the candidate has read upto Matric, provided that the said person is eligible and qualified or acquires eligibility and qualification within a period of six months from the death of the deceased. 9. While going through these rules, one comes to an in-escapable conclusion that appointment on compassionate grounds can not be claimed as a matter of right, but it is a sort of help and assistance to the dependents of the deceased in order to save them from destitution, vagrancy and from other social evils and if a family member (s) or dependents are in a position to survive and have other source to survive, they can not seek compassionate appointment. I am fortified in my view by a decision of the Supreme Court reported as Stale of U.P. Vs. Paras Nath, (AIR 1998 SC 2612), wherein it has been held that: ".....the purpose of providing employment to the dependent of a government servant dying in harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments. None of these considerations can operate when the application is made after a long period of time ....." In Haryana State Electricity Board Vs. Krishna Devi 2002 (10) SCC 246, the apex court while dealing with an identical case has observed as under:- "It is well settled that employment on compassionate ground is given only on pure humanitarian consideration and no appointment can he claimed as a matter of right. The main object was to provide immediate financial help to the family of the deceased employee. It is also well settled that employment under compassionate ground cannot be made in absence of rules or instructions issued by the government or any public authority. " The Apex Court in case reported as Commissioner of Public Instructions and others Vs. The main object was to provide immediate financial help to the family of the deceased employee. It is also well settled that employment under compassionate ground cannot be made in absence of rules or instructions issued by the government or any public authority. " The Apex Court in case reported as Commissioner of Public Instructions and others Vs. K. R. Vishwanath, 2005 AIR SCW 4102, has held that: "......the appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased." 10. There should also be no delay in seeking appointment on compassionate grounds because the purpose of providing appointment on compassionate grounds is to provide immediate help to the dependents, of the deceased and to mitigate the hardships caused due to the death of the bread earner (deceased) in the family at the relevant point of time. To alleviate the distress of the family, such appointments are permissible no compassionate grounds provided there are Rules providing for such appointments. None of these considerations can operate when the application is made after a long period of time. I am fortified in my view by a judgement reported supra wherein it has been held that: "As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we are of the opinion that it was not to meet the immediate financial need of the family." 11. Apex court in National Hydroelectric Power Corporation Vs. Nanak Chand, AIR 2005 SC 106, observed that entertaining application for compassionate appointment after considerable delay is improper. 12. If the dependents of the family have other source of income and their financial condition is not penurious, they cannot claim appointment on compassionate grounds as held by the apex court in case Punjab National bank Vs. Nanak Chand, AIR 2005 SC 106, observed that entertaining application for compassionate appointment after considerable delay is improper. 12. If the dependents of the family have other source of income and their financial condition is not penurious, they cannot claim appointment on compassionate grounds as held by the apex court in case Punjab National bank Vs. Ashwini Kumar Taneja, 2004 (7) SCC 265, the relevant portion whereof reads; is under:- " ....When the objection of compassionate appointment is kept in view with reference to the amounts received by the heirs of the deceased employee, it was submitted that there was no financial hardship. Learned counsel for the respondent submitted that the amounts like gratuity, provident fund, etc. have no relevance for determining the question whether compassionate appointment is to be made. It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis. " 13. In view of the above discussions, these petitions have no merit as the petitioners seeking appointment on compassionate grounds were neither eligible for such appointment at the time of death of the deceased nor had become so eligible within six months from the date of death of the deceased. They have also sought appointment on compassionate grounds on becoming eligible for such appointment years after the death of the deceased which is not permissible in terms of the mandate of the aforesaid judgements and aim and object of such appointment. 14. The petitions are accordingly dismissed. Copy of this order be placed on each file.